| With the development of the international trade, marine insurance industry is rapidly expanding. Meanwhile, subrogation of marine insurance arouses more and more concern and attention. As one of the hot issues in maritime law, there are lots of disputes about the right of subrogation in marine insurance, such as its definition, theoretical basis, legal essence, acquirement, exercising and legal protect and so on, which leads to many practical problems. The regulations about it in law are not enough, some of which are too simple and not practical, even some of which are conflicting with each other. Moreover, there are some problems not having been stipulated. As a result, it is very significant to research the right of subrogation in marine insurance. In this thesis, the author intends to make some research on the right of subrogation in marine insurance on the basis of civil law theories in continental law system, by referring to other scholars' ideas and comparing domestic stipulations with those abroad.The thesis is composed of four parts. Firstly, in the part of the overview on the right of subrogation in marine insurance, after brief introduction, an important distinctness is pointed out in understanding its definitions between the different law systems, and then in terms of diverse theories on its theoretical origin, it gives a deep comment and analyses, especially in that its civil base is the theory of liquidation of debt.Secondly, in the part of the basic knowledge of the right of subrogation in marine insurance, it suggests that an exception should be added into the law, which relates that underwriter can exert the maritime subrogation right against the third party not causing the insurance accident, when the legal relationship among the three parties is concerned in this part. It also agrees that the reinsurance underwriter should also have the right of maritime subrogation, combining the Compensation principle and Follow-the-Fortunes principle. It thinks the right of maritime subrogation is a legal right that the transfer of authority by nature, according to analyzing relative legal regulations, after introducing theoretical disputes and probing into practical troubles.Thirdly, the acquirement and exercising of the maritime subrogation is the importance in the thesis. It agrees that the underwriter cannot acquire the right until insurance compensation is paid to the insurer. It approves the idea of three conditions of the condition of the right's acquirement. As to the Certification of Right Transfer, it believes that it should be an evidence of the underwriter acquiring the subrogation, rather than an essential and fundamental legal document.In the study about the way of exercising the right of maritime subrogation, it divides the problem of arbitration into three kinds, supporting that the right maritime subrogation would not work, if not permitting underwriter to join the arbitration, under the condition that dispute between the insurer and the third party has been submitted to the arbitration court. It also puts emphasis on the name of exercising the right, combined with judiciary practice, and supports that the underwriter should exercise the right in name of himself.There is no rule without limitation, and so is the right if maritime subrogation. As to its limitation of exercising object, it think it better to largely explain the word " the insurer's family members and other member" into the persons composing insurer, including the legal person and organization. About the limitation on Sister Ship Clause, it suggests that the underwriter still can exercise the subrogation right as long as the evidence submitted by the underwriter is confirmed true and available by judicial organs. In terms of the right's exercising scope limitation, which has no relative legal regulation in law, it advices that it should be limited in the scope of both the insurer's right scope and the amount of insurance compensation having paid to the insurer, and it disapproves that the payment beyond to the scope the insurance liability can lead to the subrogation right. On the right's limitation of actions, which also has no mature regulations in law, it thinks that in maritime subrogation should be scoped into the limitation of insurer claiming against the third party. It also supplies some latest legal regulations on suspension of action. By introducing the British regulations, it gives a suggestion that the Red Line Clause and the Tender Clause be used for reference in practical.Lastly, in this part the legal protection on the maritime subrogation is studied from the view of the conflict between right of subrogation and the right of insurant to ask for compensation when the compensation of the underwriter and the third party cannot be satisfy the loss of the insurant. With no legal regulation about it in law, it makes a comparison between two law systems both in theories and in regulation, and then gives the analyses and its idea that the insurer's right against the third party to ask for compensation beyond to the underwriter's payment should be superior to the right of maritime subrogation... |
